The Cybersecurity 202: Privacy advocates blast Kavanaugh for government surveillance support

Derek Hawkins, The Washington Post

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4:36 am PDT, Wednesday, July 11, 2018

Photo: Washington Post Photo By Matt McClain.

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President Trump's nominee for the Supreme Court, Brett Kavanaugh, walks up the Senate steps to the Capitol with Vice President Pence on Tuesday.

President Trump's nominee for the Supreme Court, Brett Kavanaugh, walks up the Senate steps to the Capitol with Vice President Pence on Tuesday.

Photo: Washington Post Photo By Matt McClain.

The Cybersecurity 202: Privacy advocates blast Kavanaugh for government surveillance support

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WASHINGTON - President Donald Trump's pick to replace Justice Anthony Kennedy on the Supreme Court is drawing fire from privacy advocates and civil libertarians who object to his strong endorsements of warrantless government surveillance as a federal judge.

During Brett Kavanaugh's time on the U.S. Court of Appeals for the District of Columbia Circuit, he sided with the National Security Agency and law enforcement in a pair of major cases that respectively challenged the government's ability to collect Americans' communications and location data. His detractors - from both parties in Congress - worry his confirmation could mean a powerful voice on the bench against expanding privacy protections at a time when data collection tools are becoming more sophisticated.

"Kavanaugh has shown again and again that he will side with Big Brother and big business ahead of the liberty of individual Americans," Sen. Ron Wyden, D-Ore., one of the Senate's loudest critics of government surveillance, told me. "His decisions on mass surveillance and warrantless tracking of Americans' every move are out of step with both the Fourth Amendment and the Court's recognition that digital devices are different."

"Future decisions on the constitutionality of government surveillance of Americans will be huge," Amash said in a Twitter thread that quoted directly Kavanaugh's opinion on NSA surveillance. "We can't afford a rubber stamp for the executive branch."

The criticisms add another dimension to the all-out blitz Senate Democrats and progressive groups launched this week to derail Kavanaugh's nomination. While the national debate has focused largely on the judge's views on abortion rights and executive power, his stances on digital privacy and government surveillance powers are arousing controversy that could also stretch into his confirmation hearings.

"Judge Kavanaugh's nomination comes at a critical moment for digital rights," said Corynne McSherry, legal director for the Electronic Frontier Foundation, a digital rights organization. "We hope the Senate will press him to articulate his views on these crucial issues."

Privacy advocates are particularly concerned with Kavanaugh's defense of the NSA's bulk collection of phone records in the case Klayman v. Obama, which arose from Edward Snowden's disclosures about the agency's warrantless surveillance of Americans. In a concurring opinion in 2015, Kavanaugh wrote that the program was "entirely consistent with the Fourth Amendment." He added that the Constitution "allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient 'special need' - that is, a need beyond the normal need for law enforcement - that outweighs the intrusion on individual liberty." In this instance, he concluded, the special need was preventing terrorist attacks.

The other case in question came several years earlier in United States v. Jones, which centered on whether law enforcement needed a warrant to track people using GPS devices. Kavanaugh dissented when the D.C. Circuit declined to revisit its ruling that police had violated a suspect's Fourth Amendment rights by tracking his car's location without a warrant. The majority's decision, he said, broke with precedent saying people didn't have a "reasonable expectation of privacy" on the highway.

Those opinions could put Kavanaugh at odds with a majority on the court that has recognized broader Fourth Amendment protections as surveillance tools have advanced. When the Jones case landed at the Supreme Court in 2012, the justices ruled unanimously that law enforcement officers typically need a warrant to track people using GPS devices. In another landmark opinion two years later, the court again ruled unanimously that warrantless cellphone searches were unconstitutional in most cases. And just last month, the court ruled 5 to 4 that law enforcement generally must get a warrant to access the troves of location records from cell towers.

Kavanaugh could be a "potential vote for retrenchment on privacy and the Fourth Amendment," said Albert Gidari, director of privacy at the Stanford Center for Internet and Society. As Kavanaugh moves through the confirmation process, he added, "I don't think there will be any surprises, as his unabashed view that national security trumps privacy is pretty clearly articulated in Klayman."

"In short," Gidari said, "the privacy community isn't having cocktails over this one."